Nova Law Review
Volume 36, Issue 3
2012
Article 4
Historical and Legal Implications of
Subliminal Messaging in the Multimedia:
Unconscious Subjects
Laura R. Salpeter∗
Jennifer I. Swirsky†
∗
†
c
Copyright 2012
by the authors. Nova Law Review is produced by The Berkeley Electronic
Press (bepress). http://nsuworks.nova.edu/nlr
Salpeter and Swirsky: Historical and Legal Implications of Subliminal Messaging in the
HISTORICAL AND LEGAL IMPLICATIONS OF SUBLIMINAL
MESSAGING IN THE MULTIMEDIA: UNCONSCIOUS
SUBJECTS
LAURA R. SALPETER*
JENNIFER I. SWIRSKY**
I.
II.
III.
IV.
V.
VI.
INTRODUCTION
......................................
....... 497
THE HISTORY OF ATTEMPTS AT UNCONSCIOUS PERSUASION ........... 499
CURRENT REGULATION
.................................
..... 502
How SUBLIMINAL MESSAGES WORK..
........................
504
VIOLENCE AND SICKNESS
...............................
..... 505
UNCONSCIOUS PROCESSING AND THE IMPACT ON BEHAVIOR...........507
A.
B.
Discrimination,Stereotyping, Categorizing,and Favoritism...508
Activists
...............................
....... 510
VII. THE PUBLIC REACTION
...............................
511
VII. LEARNING TO SEE THE INVISIBLE
........................
513
IX. THE FIRST AMENDMENT
...............................
...... 514
A.
B.
X.
XI.
Commercial Speech......................
Right to Be Freefrom Unwanted Speech...
........ 515
................... 516
518
........................................
RECOMMENDATIONS
.......... 519
CONCLUSION
.....................................
I.
INTRODUCTION
"Teenagers, take off your clothes" is what people all over the world began to hear as word spread that Disney incorporated a hidden message in its
acclaimed movie "Aladdin."' The message, unavoidable, yet undetectable
* Laura R. Salpeter, Esq. is an analyst at Cassel Salpeter & Co., LLC. Laura assists the
firm with M&A, restructuring, and financial advisory services. Laura is a member of the
Florida Bar and the District of Columbia Bar and graduated from Nova Southeastern University's Shepard Broad Law Center with cum laude honors in 2010.
** Jennifer I. Swirsky, Esq. currently serves as a judicial law clerk to the Honorable
Judge Mark E. Polen at the Fourth District Court of Appeal in the State of Florida and will be
joining Cole, Scott & Kissane, P.A. as an associate beginning in the summer of 2012. Jennifer
is a member of the Florida Bar and graduated from Nova Southeastern University's Shepard
Broad Law Center with magna cum laude honors in 2010.
Both Laura and Jennifer were staff members of Nova Law Review and held board
positions as Articles Editors.
1. See Haley Rinas, Aladdin and the Naked Truth, in Hidden Sexual Messages Found in
Disney Movies, BOWLING GREEN ST. UNIV., 3 (2003), http://www.bgsu.edu/departments/tcom
/faculty/ha/tcoml03fal12003/gpl3/gpl3.pdf.
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unless paid close attention to, has been linked to "the power of suggestion"
because once people were informed of the rumored dialogue, they too began
to hear it. 2
Visual hidden messages have also surfaced in Disney movies.3 For example, in "The Lion King," Disney artists manipulated their drawings to
briefly flash the word "SEX" on the screen, scrawled out in a cloud of dust.4
This "message[] can be identified as [an] indirect hidden message[], which
mean[s] the viewer was not directly intended to see the message, unless possibly looking for such material."5 However, a Disney representative argued
that this scene was in a wholesome family film, and anything that might be
viewed as inappropriate for such a film is perceptional.6
Subliminal messaging is not specific to Disney, nor is it solely sexual in
nature.' In several situations, musicians have included messages in their
songs that have not only led to atypical acts by listeners, but have also allegedly led to their self-inflicted deaths. In response to reactions, such as
these suicides, courts have explored the issue of whether subliminal messages are considered speech and covered by the same First Amendment protections as actual lyrics-which are classified as speech.9
Similarly, this article will explore the conflicting First Amendment
rights of both the entertainment industry and the fans of the particular pieces
of work. Sections H and Ill will discuss the history of attempts at unconscious persuasion and current regulations regarding subliminal messaging.
This article will further explain how subliminal messages work and the sickness these messages have been reported to cause. This article will also dis2. Id.
3. Brett Pilkington & Steve Raszka, The Lion King Uncensored, in Hidden Sexual Messages Found in Disney Movies, BOWLING GREEN ST. UNIV., 4 (2003), http://www.bgsu.edul
departments/tcom/faculty/haltcomI03fall2003/gpl 3/gp1 3.pdf.
4. Id.; see LION KING (Walt Disney Pictures 1994).
5. Pilkington & Raszka, supra note 3, at 4.
6. Id.
7. See, e.g., Larry Rohter, 2 FamiliesSue Heavy-Metal Band as Having Driven Sons to
Suicide, N.Y. TIMES, July 17, 1990, at Cl3.
8. E.g., id. The album that was said to influence the suicides of teenage boys was
Stained Classby Judas Priest, and the lyrics at issue included "Let's be dead" and "Do it." Id.
"Both the group and its record label [were] charged in a civil suit with the liability arising
from the manufacture and marketing of a faulty product, as well as negligence and intentional
and reckless misconduct." Id.
9. See Matthew W. Daus, Subliminal Messages in Music: Free Speech or Invasion of
Privacy?, 9 U. MIAMI ENT. & SPORTs L. REV. 241, 257 (1992) (citing Vance v. Judas Priest,
No. 86-5844, 1990 WL 130920, at *23 (Nev. Dist. Ct. Aug. 24, 1990)). See generally Pamela
Marsden Capps, Note, Rock on Trial: Subliminal Message Liability, 1991 COLuM. Bus. L.
REV. 27.
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cuss the unconscious processing and impact on behavior, as well as the public's reactions to these messages and the consequences these messages have.
The final sections will analyze the First Amendment implications, as previously mentioned, that may exist for both parties to the message-the creator and the viewer or listener. This article will conclude with recommendations by the authors and a brief summary of the issue.
II.
THE HISTORY OF ATTEMPTS AT UNCONSCIOUS PERSUASION
The word "subliminal" is a Latin word derived from the words "sub,"
meaning below, and "llmen," meaning threshold.'o The Oxford English Dictionary defines subliminal as that existing or functioning "under the threshold of consciousness."" Subliminal messages are generally defined as
"the projection of messages by light or sound so quickly and faintly that they
are received below the level of consciousness."l 2 There are various ways to
achieve a subliminal message including: A picture or written command
flashing briefly on the screen, audio messages "prerecorded and later multitracked over regular [music or] promotional" messages, or even inserting
messages into "empty" programming pauses. 3 Many studies have shown the
effectiveness of these subliminal techniques and how they play into the psychodynamic activity of our unconscious mind.14
The concept of subliminal messages can be dated back as early as 400
B.C.; however, the study of their use and the effect they have on the unconscious mind "did not become prevalent until the mid-to-late 1800s."" "The
concern[s] about ... subliminal messages came to the forefront in the mid1950s [when] James Vicary [stated at] a press conference . . . that his company, Subliminal Projection Inc., was ready to offer the use of subliminals to
customers."' 6 Based upon the increase of Coca-Cola and popcorn sales after
flashing the messages, "Drink Coca-Cola" and "Hungry? Eat Popcorn"
"every five seconds for one three-thousandth of a second" over Kim Novak's
face in the movie "Picnic," Vicary was ready to offer his proclaimed success
See THE OXFORD ENGLISH DICTIONARY 40 (2d ed. 1989).
11. Id.
12. Nicole Grattan Pearson, Note, Subliminal Speech: Is It Worthy of First Amendment
Protection?, 4 S. CAL. INTERDISC. L.J. 775, 776 (1995) (quoting ALAN F. WESTIN, PRIVACY
AND FREEDOM 279 (1967)) (internal quotation marks omitted); see Capps, supra note 9, at 29.
13. Harry Schiller, Note, First Amendment Dialogue and Subliminal Messages, II
N.Y.U. REV. L. & Soc. CHANGE 331,332(1982-1983).
14. Id. at 332-35.
15. Pearson, supra note 12, at 776.
16. Id. at 777.
10.
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to the world.17 According to Vicary, the influence was not conscious; however, if the viewer's predispositions were consistent with the subliminal message, the audience would be influenced by it.' 8 The public, however, opposed these techniques, voicing concerns such as: general uneasiness of the
unknown, the belief that the world was being brainwashed, and an attempt at
mind manipulation." The public grew so concerned that they soon believed
that "the Soviets would use subliminals to turn neutral nations against the
United States, thereby increasing their power throughout the world." 20
Shortly after these concerns grew, all major television networks 21 announced
that they "would not accept subliminal advertising or use the technique in
their productions."22 However, this was not the end to experiments in subliminal messages and the effects they have on the unconscious mind.
The next year, "in 1957, a television station in Maine conducted . . . [a
subliminal message] experiment" of its own. 23 The station stated "every eleven seconds at one eightieth of a second," every other day for two weeks:
"IF YOU HAVE SEEN THIS MESSAGE, WRITE WTWO." 24 Further, in
1958, CBS-TV in Canada broadcasted subliminals "between one-fifth and
one-half second 352 times in one half hour" the words "Telephone Now."25
Unfortunately, both of these experiments "did not increase mail or calls from
viewers" and were ultimately deemed a failure.26 This upset, however, did
not slow down others from experimenting on their own.
The same year, in 1958, on WTTV in Bloomington, Indiana, two university faculty members "superimposed a low-contrast beam, which conveyed a subliminal message [over a nightly television movie] at a dimmer
light level than the [original]." 27 This message notified viewers to "Watch
17. Id.
18. See Olivia Goodkin & Maureen Ann Phillips, Note, The Subconscious Taken Captive: A Social, Ethical, and Legal Analysis of Subliminal Communication Technology, 54 S.
CAL. L. REV.
1077,
1079-80 (1981)
(quoting JAY KATZ, ET AL.,
PSYCHOANALYSIS,
PSYCHIATRY, AND LAw 274 (1967)).
19. Pearson, supra note 12, at 777.
20. Id.
21. Daus, supra note 9, at 243. CBS, NBC, and ABC, along with national and state civic
organizations, and the National Association of Radio Television Broadcasters condemned
subliminal messages. Id.
22. Capps, supra note 9, at 30.
23. Pearson, supra note 12, at 777.
24. Schiller, supranote 13, at 332.
25. Pearson, supra note 12, at 777; Schiller, supra note 13, at 332.
26. Pearson, supra note 12, at 777.
27. Id.; Schiller, supra note 13, at 332.
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Frank Edwards," and was intended to make the viewers watch the television
show without changing the channel.28
Following the rage of visual subliminals, audio subliminals soon became popular with radio stations.29 In 1962, the popular network station
CBS announced that "subliminals were used in [its] regular program credits." 30 The Federal Communications Commission (FCC) received an abundant amount of complaints from their viewers, to which CBS declared the
whole "announcement was a hoax." 3 1
In 1973, both television and radio were issued a warning against any
further subliminals due to a public outcry when the Premium Corporation of
America superimposed the message "Get It" on a toy called "Husker-Du"
during Christmas. 32 "The Premium Corporation of America 'claimed that it
was inserted by an exuberant but misguided young man from the production
house in Minneapolis."' 33
Politics has also been an area that subliminals have boomed in. 34 According to Dr. Key, the use of SEX "embeds" "have been used in every political campaign of any magnitude in the United States and Canada for at least
twenty-five years-if not much, much longer."3 Dr. Key reports:
In a recent U.S. congressional election campaign in Virginia's 10th
District, SEX "embeds" were discovered in the campaign literature
of all candidates except one who could not afford to hire an advertising agency.
. .
. A formal complaint was initiated by one candi-
date with the Virginia Election Commission, charging the use of
subliminal techniques in the candidate's literature. The commission refused to accept the complaint.36
Subliminals had yet to find their place in the world of advertisements;
however, they had evolved into both encouraging and artistic devices. 37 For
example, subliminals had been used in movies such as "The Exorcist" and
"My World Dies Screaming" to enhance the tension level by projecting the
28. Pearson, supra note 12, at 777-78.
29. Id. at 778.
30. Id.
31. Id.; Schiller, supra note 13, at 332-33.
32. Pearson, supra note 12, at 778; Schiller, supra note 13, at 333.
33. Schiller, supra note 13, at 333.
34. See id. at 335.
35. Id. (quoting WILSON BRYAN KEY, MEDIA SEXPLOITATION 8 (1976)) (internal quotation marks omitted). SEX embeds is the technique of engraving the letters S-E-X or S-X into
the natural lines of faces or hands of candidates in promotional ads. Id.
36. Id. (omission in original) (quoting KEY, supra note 35, at 8).
37. See Schiller, supra note 13, at 333-34.
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word "BLOOD" 38 or placing a serpent across a villain's chest subliminally.
Furthermore, subliminals had been shown "to induce weight control, promote safe driving, [and] prevent shoplifters."39 For instance, a television
station in Los Angeles "flashed 'DRIVE SAFELY' during [a] news [programming] in an ... attempt to lower the accident rate." 40 Additionally, an
audio "Black Box" was used by Dr. Hal Becker playing messages such as,
"do not steal" and "I am honest" over music in department and grocery stores
in order to deter shoplifting.4 1 Research in this area illustrates how subliminal messages affect "the moral and ethical implications" of the unconscious
mind.42
III. CURRENT REGULATION
Since its beginnings in the public eye, subliminals have drawn the attention of governmental restraints on its use.4 3 "[O]n February 8, 1958, and
March 12, 1958, [r]epresentatives .. . introduced bills H.R. 10802 and 11363
[in order] 'to make unlawful the use of subliminal advertising on television
and [to prescribe] penalties."' There were never hearings held on either bill
and, to date, there is no law dealing with the issue of subliminal messages.45
Despite having power, although limited, the FCC and the Federal Trade
Commission (FTC) have made minimal regulations in the area of subliminals. 46 Acting as a quasi-judicial body, the FCC and the FTC have "wide discretion to determine whether any practice is unfair." 47 Although challenged
38. Id. at 333. "The Exorcist" involved a "subliminal deathmask[] in the old priest's
dream sequence." Id. Purportedly, "after seeing the subliminal deathmask ... a young Indianapolis man fainted and broke his jaw [and was] suing Warner Brothers for $350,000 because 'the subliminal image constitutes an intentional defect in the movie .
.
. that .
.
. can
harm the viewer."' Id.
39. Pearson, supra note 12, at 779.
40. Schiller, supra note 13, at 334.
41. Pearson, supra note 12, at 779; Schiller, supra note 13, at 334. "The 'Black Box' is a
soundmixer-like those used by deejays-that mingles bland music with the desired subliminal message." Pearson, supra note 12, at 779. According to Dr. Becker, the "use of subliminals would increase in the future: '[Slomeday there will be audio conditioning in the same
way we now have air conditioning."' Id. at 779-80 (quoting Schiller, supra note 13, at 335).
42. Id.
43. Id. at 781.
44. Thomas Albert Bliss, Subliminal Projection: History and Analysis, 5 CoM/ENT L.J.
419, 425-26 (1983) (alteration in original) (quoting H.R. 10802, 85th Cong. (2d Sess. 1958));
H.R. 11363, 85th Cong. (2d Sess. 1958).
45. Pearson, supra note 12, at 782.
46. Id.
47. See Daus, supra note 9, at 253. However, "the FTC has no specific regulations or
policy concerning subliminals." Schiller, supra note 13, at 359.
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in FunctionalMusic, Inc. v. FCC,48 the FCC attempted to ban "the broadcast
of functional music to the general public, but allowed private subscribers to
receive it." 49 The court reasoned that the listening audience had "consented
to listen to the music" being broadcasted and did not consider the issue of the
unconscious listeners' invasion to privacy.o The regulation was overturned
when the court held that "functional [music] can be, and is, of interest to the
general radio audience."" Further action was taken in 1958 by the National
Association of Radio and Television Broadcasters (NARTB) by stating it
banned subliminals, however, this ban did not supply any enforcement mechanisms, and the NARTB has never actively searched for subliminals.52
"Courts have [also] dealt with [the issue of] subliminals both directly
and indirectly."53 An indirect analysis can come from the court discussing a
captive audience, the right to privacy, or even deceptive advertising. 54 For
instance, the court in Banzhaf v. FCC65 analogized the potential grave consequences cigarettes might have on a person's health with those impacts of
subliminals and the grave consequences the unknown might have.56 Specifically, the court stated "[i]t is difficult to calculate the subliminal impact of
this pervasive propaganda, which may be heard even if not listened to, but it
may reasonably be thought greater than the impact of the written word."57
Furthermore, in Stevens v. Parke, Davis & Co.,58 the court, in finding that a
physician could be influenced subliminally to administer the wrong drug,
stated:
48.
274 F.2d 543 (D.C. Cir. 1958).
49. Pearson, supra note 12, at 782 (footnote omitted).
"Functional Music is best known by the trademark of its largest producer, Muzak. It is designed by psychologists to achieve specific psychological and physiological changes in listeners. Depending on the intentions of the designers of a particular program, the music may increase sales in supermarkets, increase the vigilance of military personnel, or reduce the error
rate in a factory."
Id. at 782 n.55 (citation omitted) (quoting Charles B. Kramer, Comment, JudicialRecognition
and Control of New Media Techniques: In Search of the "Subliminal Tort", 14 J. MARSHALL
L. REV. 733, 740-41 (1981)).
50. Pearson, supra note 12, at 783.
51. FunctionalMusic, Inc., 274 F.2d at 548-49 (emphasis in original).
52. Pearson, supra note t2, at 783.
53.
Id. at 784.
54.
55.
56.
Id. at 784-85.
405 F.2d 1082 (D.C. Cir. 1968).
Id. at 1099-1101.
57. Id. at 1100-01. The court recognized the use of subliminals merely as continued and
repetitive advertising which has an effect on the unconscious viewer. See id.
58. 507 P.2d 653 (Cal. 1973) (in bank).
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The record reveals in abundant detail that Parke, Davis made every
effort, employing both direct and subliminal advertising, to allay
the fears of the medical profession which were raised by knowledge of the drug's dangers. It cannot be said, therefore, that Dr.
Beland's prescription of the drug despite his awareness of its dangers was anything other than the foreseeable consequenceindeed, the desired result-of Parke, Davis' overpromotion .... 5
More recently, there have been cases involving people who commit suicide, or attempt to, because of subliminal messages affecting those who already have a predisposition for depression or suicidal thoughts.' This "suicide zone" creates a compulsion to attempt suicide and illustrates the effect
subliminals have on human behavior.
IV. How SUBLIMINAL MESSAGES WORK
The receipt of subliminal messages is undetectable and unnoticeable,
however, the effects such messages have on the brain are quite the opposite.62
Subliminal messages may be sent through text, images, or sound.63 Each
form of media affects the brain by submitting a signal to the brain, which,
over time, trains it to perform in a particular way.M Generally, subliminal
messages work by flashing the message quickly enough so "that the conscious mind [will not] pick up on it, but the rest of [the] brain has time to
decipher." 6 5
While subliminal messages may be used positively-by teaching one's
brain to refrain from bad habits, change old habits, and create new, positive
habits-these messages may result in negative effects on the person who is
receiving the message.66 For example, the power of these messages may
59. Id. at 664.
60. Pearson, supra note 12, at 787-88.
61. Id. A "suicide zone" "occurs when a person has both a personality predisposition and
a situational predisposition to commit suicide." Id. at 788 (quoting Vance v. Judas Priest, No.
86-5844, 1990 WL 130920, at *12 (Nev. Dist. Ct. Aug. 24, 1990)).
62. "What Is Subliminal and How Subliminal Messages Work?", SUBLIMINALANALYSIS.COM, http://www.subliminalanalysis.com/subliminal-messages.html (last visited
Apr. 15, 2012).
63. Id.
64. Id. The example given on SubliminalAnalysis.com involves the "psychological
dependence on [nicotine and] the act of smoking and the craving for tobacco." Id. Sending
subliminal messages to the nicotine-dependent brain will eventually result in elimination of
the craving and the need to smoke. Id.
65. "What Is Subliminaland How Subliminal Messages Work?", supra note 62.
66. Id.
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affect one's mood rather dramatically, resulting in extreme happiness or extreme depression, depending upon the context of the message.67 Studies have
shown that the negative message with emotional meaning is more likely to
be recalled.
Specifically, a United Kingdom study at the University College London
asked participants "to recall and identify words with an emotional value"
after they were visually displayed "for as little as [seventeen] milliseconds." The results of the study showed that humans are programmed to
respond subconsciously to potential threats.70 While advertisers may use this
information to their advantage and phrase their advertisements using words
that are more likely to be recalled by consumers-and while there are clear
"evolutionary advantages" to a quick response to a threatening message-the
conclusive demonstration "that people are much more attuned to negative
words," may also serve as a severe disadvantage.
V.
VIOLENCE AND SICKNESS
Studies show that only 3% of the public is affected by subliminal messages when considering whether the messaging may result in violence. 72 The
question proposed by doctors has been whether that 3% of the population
suffers from some form of brain damage and if so, whether the lesions on
their brain causing the specific damage lend a hand in the eventual violent
acts that may occur.73 Those who have frontal lobe lesions, specifically, are
more apt to respond violently to messages suggesting as such, and within that
portion of the population, the percentage of those who respond violently to
messages increases to 13%.74
Typically, people respond to messages regarding how they should act,
"what groups they belong to, or what type of person they are," without the
67. Id.
68. David Morgan, Negative Subliminal Messages More Effective, ECONWATCH (Sept.
28, 2009, 10:08 AM), http://www.cbsnews.com/8301-503983_162-5346300-503983.html.
69. Id. The words in the study included positive words-"flower," "peace," "cheerful"and negative words-"agony," "despair," "murder." Id. The positive words were recalled
59% of the time, while the negative words were correctly recalled 77% of the time. Id.
70. Id.
71. UCL Study: Subliminal Messaging 'More Effective When Negative', UCL NEWS
(Sept. 28, 2009), http://www.ucl.ac.uk/news/news-articles/0909/09092801.
72. Unlocking the Secrets and Powers of the Brain: Subliminal Messages and Violence
at 00:13:00, DISCOVER MAG. (Feb. 26, 2009) [hereinafter Subliminal Messages and Violence],
http://discovermagazine.com/video/unlocking-secrets-power-of-brain-nsf/subliminalmessages-and-violence.
73. Id. at 00:21:00-:35:00.
74. Id. at 00:47:00-1:04:00.
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realization they are responding to a message at all.75 "There are groups of
people in society who are being given the message 'we expect you to be violent,' and [there are] groups of people who are being given the message 'we
don't expect you to be violent.'" 76 These people may be given messages
both explicitly and with unawareness.
A major concern of these messages rests on the impact they will have
on children.78 It is suggested that children are most susceptible to media influences of violent behavior during "the prime of a child's emotional developmental life."79 "[I]n American society today, where image management
has become a lucrative business and a matter-of-fact necessity in commerce,
industry, politics, and personal relationships, style has ripened into an intrinsic form of information."so The mass media has begun to tell people who
they are and what they should do, eliminating the need for people to think for
themselves and instead, replacing their thoughts with images that may be
violent in nature.
Competing views exist relating to whether media messages influence
people and create violence in society. 82 One view is that the media does not
create violent people and instead, simply offers an aggression outlet for those
who may need one. 83 These same media supporters blame people's overindulgence in media, victimizing those who go out and act subsequent to viewM Contrarily, "many political scientists, educators, and
ing violent messages.8
criminologists and much of the general public" believe that media influences
its audience, providing somewhat of a "cultural training ground" for those
who are receiving messages through television, movies, music, and the like.
Those who take this contrary opinion state that media teaches those in society what their roles are and what is expected of them, often communicating
messages that "are confusing, inaccurate, and distorted."86
Id. at 1:55:00-:58:00 (quoting Dr. Rebecca Saxe).
Id. at 3:00:00-:09:00 (quoting Dr. Rebecca Saxe).
Subliminal Messages and Violence, supra note 72, at 3:08-:15.
See JUDITH M. SGARZI & JACK MCDEVITr, VICTIMOLOGY: A STUDY OF CRIME
VICTIMS AND THEIR ROLES 70 (2002).
79. Id.
80. Id. (quoting Pat O'Mailey & Stephen Mugford, Crime, Excitement, and Modernity, in
VARIETIES OF CRIMINOLOGY: READINGS FROM A DYNAMIC DISCIPLINE 205 (Gregg Barak ed.
1994)) (internal quotation marks omitted).
81. Id.
82. Id. at 70-71.
83. SGARZI & MCDEVITr, supra note 78, at 71.
84. Id.
85. Id.
86. Id.
75.
76.
77.
78.
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VI. UNCONSCIOUS PROCESSING AND THE IMPACT ON BEHAVIOR
What impact, if any, do subliminals actually have on our behavior?
This is a question that is still ripe for controversy. Researchers and scientists
agree that subliminal messages do exist and the brain can receive messages
without being consciously aware of it.87 However, the controversy is surrounded around whether the received messages impact human behavior."
Particularly, researchers want to know "whether subliminal communication
actually has the ability to induce new behavior or whether it can only strengthen behavior to which an individual is already predisposed." 9 Theories of
the impact subliminals have on human behavior have been presented by various researchers who have come to diverse conclusions, such as:
1) Individuals are capable of unconsciously receiving information,
and yet can discriminate, recognize and react to the content of such
information, resisting negative content and more readily accepting
positive content.
2) A predisposing behavior or response is not always necessary for
effective subliminal suggestion, and certain new responses may be
induced.
3) Individuals do not react uniformly to subliminal messages presented at the same level of intensity and duration.
4) Certain personality characteristics may predispose some individuals to be more easily influenced by subliminal suggestion.
5) Related to the concept of predisposition, the effectiveness of
subliminal communication may be somewhat dependent upon the
motivational and emotional states of the receiver.
87. See Pearson, supra note 12, at 788.
88. Id. at 788-89. Specifically, researchers want to know whether "subliminal persuasion" exists. Id. at 788 (emphasis omitted).
89. Id. at 789.
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6) [S]ubliminal persuasion is possible yet inefficient.
7) [Tihe messages do register in some deep recess of the brain and
apparently influence behavior.90
These theories of impact all illustrate how subliminals can affect the viewers'
or listeners' thoughts; however, what impact does it play on others? Have
subliminals been an auxiliary to discrimination, stereotyping, characterizing,
and favoritism? Has television and radio shaped the images, messages,
thoughts, and values of our society? We are incapable and defenseless
against these messages absorbing into our minds because of our inability to
even know we are receiving information. 9'
Discrimination,Stereotyping, Categorizing,and Favoritism
A.
Subliminal messages that are positive and convey a message that promote new beginnings and healthy lifestyles have more or less been tolerated
in our society. However, it is just as easy for a subliminal message to convey
a derogatory or prejudicial statement that manipulates the behavior of the
listener towards certain people because of their class, race, or gender. The
court in Vance v. Judas Priest92 argued:
[Subliminals] do not convey ideas or information to be processed
by the listener so that he or she can make an individual determination about its value. They do not enable an individual to further
his personal autonomy. Instead, they are intended to influence and
manipulate the behavior of the listener without his [or her] knowledge.93
Invisible influence-the power of persuasion-in the wrong hands, could
lead to the malicious, unethical, and the immoral molding of one's mind.
Our behavior, one could argue, is part of our conscious mind; however, our
90.
Id. at 789-92 (quoting Hal C. Becker, Secret Voices: Messages that Manipulate,
TIME, Sept. 10, 1979, at 71).
91.
92.
93.
See Pearson,supra note 12, at 788-89.
No. 86-5844, 1990 WL 130920 (Nev. Dist. Ct. Aug. 24, 1990).
Id. at *25.
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attitude and the ways it affects our behavior are subconscious. 94 Few people
want the way they act-whether accommodating or aggressive towards a
person-to be prejudiced by mental bias because of news broadcasts, advertisements, and movies. However, this type of situation happens daily, and
it is what psychologists Timothy Wilson and Nancy Brekke describe as
"mental contamination."96 According to researchers, stereotyping, categorizing, and prejudice are all things that are learned at a young age and are uncontrollable when such an encounter takes place. 97 For example, studies
have shown countless times that when an individual is physically attractive,
people-subconsciously-tend to treat them in a more accommodating
way.98 Or, on the contrary, an employer might give an employee a less than
favorable evaluation because of the employee's skin color or gender-even
if the employer did not intend to be persuaded by such stereotypical social
judgments. 99 In both instances, the assessor is influenced by an observed
attribute and is unaware of such influence."*
Furthermore, researchers have speculated that stereotyping is a process
of the subconscious.' 1 A stereotype is an "abstract structure[] of knowledge
or [an] understanding[] that link[s] group membership to a set of traits or
behavioral characteristics." 02 Indeed, one of the most influential cases of
subconscious stereotyping is Price Waterhouse v. Hopkins.0 3 Here, Ann
Hopkins was told to "walk more femininely, talk more femininely, dress
more femininely, wear make-up, have her hair styled, and wear jewelry."'0
At trial, a social psychologist, Dr. Susan Fiske, testified as an expert witness
that "Price Waterhouse was likely influenced by sex stereotyping." 05 Dr.
Fiske based her conclusions not only on the sexual comments made by the
94. Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with
Unconscious Racism, 39 STAN. L. REV. 317, 334-35 (1987).
95. Timothy D. Wilson & Nancy Brekke, Mental Contaminationand Mental Correction:
Unwanted Influences on Judgments and Evaluations, 116 PSYCHOL. BULL. 117, 117 (1994).
96. Id. More specifically, "mental contamination" is defined as "the process whereby a
person has an unwanted judgment, emotion, or behavior because of mental processing that is
unconscious or uncontrollable." Id.
97. Id. at 127.
98. See, e.g., Amy L. Wax, Discriminationas Accident, 74 IND. L.J. 1129, 1135 (1999);
see also Wilson & Brekke, supra note 95, at 117.
99. Wax, supra note 98, at 1135.
100. Id.
101. Id.at1136-37.
102. Id. at 1136.
103. 490 U.S. 228 (1989).
104. Id. at 235 (quoting Hopkins v. Price Waterhouse, 618 F. Supp. 1109, 1117 (D.D.C.
1985)) (internal quotation marks omitted).
105. Id.
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partners, but also comments made by those who hardly knew her or had contact with her.106 The Court, in more or less words, only affirmed the pervasiveness of unconscious stereotyping by stating, "some of the partners' remarks about Hopkins stemmed from an impermissibly cabined view of the
proper behavior of women."'0o
Nonetheless, how can we control something that is invisible? Studies
have shown that an individual's attempt to control or suppress one's own
discriminatory or stereotypical responses commonly leads to an increase in
frequency of the same.os Therefore, the issue of unconscious discrimination
becomes a double-edged sword. On the one hand, we are defenseless against
messages when we do not have the awareness we are receiving them, and on
the other hand, if we are aware of them and attempt to control them, they
only amplify. 1 9
B.
Activists
Over time, our society has come to accept different walks of life. More
than one would presume that prime time television has been one of the most
skillfully capitalized resources for gaining acceptance in the wider society."o
Activist groups, since as early as the 1950s, have been involved in the struggle to control network television.'1 The theory motivating this struggle is
that people depend on television for most of their information about the
world." 2 Television is the most commanding, comprehensive, and controlling mass medium in our society.' 13 It has such considerable power to shape
and reinforce the values in American society by just telling a fictional story.114 For instance, television bears the ability to transform the "contours of
the real world" and allows our subconscious to confuse such images with
reality."' One advocacy group leader proclaims that television "is an electronic vending machine, offering sweet-smelling bodies, stuffed, satisfied
106. Id. Gender-neutral remarks were made, describing Hopkins as "universally disliked"
and "consistently annoying and irritating." Id.
107. Hopkins, 490 U.S. at 236-37.
108. Wilson & Brekke, supra note 95, at 127.
109. See id.
110. See generally KATHRYN C. MONTGOMERY, TARGET: PRIME TIME-ADVOCACY
GROUPS AND THE STRUGGLE OVER ENTERTAINMENT TELEVISION (1989).
111. Id. at 6.
112. Id.
113. See id. at 6-7.
114. Id. at 6.
115.
MONTGOMERY,
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bellies, and great vacant gaps in our cerebral cortex."' 16 By the early 1980s,
industry leaders finally accepted the fact that advocacy groups were going to
be a permanent part of influencing television programming."'
The portrayals of stereotypical characters in television-such as businessmen, women lawyers, elderly individuals, homosexuals, union workers,
and minorities-have influenced how we view these characters in the day-today world."' Activists, having knowledge of this influence, have used television to their advantage."l9 For instance, pro-abortion activists in 1971 used
a popular television show entitled Maude to educate and influence society
about the dangers of an unconstrained population growth.120 This led to a
number of other activist groups pressuring networks to televise shows concerning their controversial issues in a favorable light.12' By the 1972-1973
television season, networks were broadcasting lesbian seduction, wifeswapping, homosexuality, and intermarriage-both race and religionsegments.122 The success of these shows and the slowly progressing acceptance of different groups have demonstrated the ability to influence and
change the views of our nation based on the subconscious ability to confuse
the images of television with reality.
VH. THE PUBLIC REACTION
The term "subliminal advertising" is widely known throughout the public, and a vast majority understands the basic concept of the use of subliminal
messaging and views it as a successful means of influence by advertisers of
brands. 23 When subliminal messaging first surfaced, the FCC received numerous inquiries and complaints about the technique.124 The majority opinion was that use of such messaging was "sneaky" and worrisome because it
left the public unsure what the government would do with this technique in
its hands.125
116.
117.
118.
119.
Id.
Id. at 6.
See id. at 7-8.
Id.at29-31.
120. MONTGOMERY, supra note I10, at 31.
121. See id. at 38-40.
122. Id. at 39-40.
123. Martha Rogers & Kirk H. Smith, Public Perceptionsof SubliminalAdvertising: Why
PractitionersShouldn't Ignore This Issue, 33 J. OF ADVERTISING RES. 10, 11 (1993).
124. FCC Information Bulletin on Subliminals, BROADCASTING 101, http://www.broad
castingl0l.ws/subliminal.htm (last visited Apr. 15, 2012).
125. Id. Specifically, the public expressed concerns that subliminal messages "could be
used to brainwash Americans with foreign ideologies." Id.
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Shortly after the Vicary study was conducted, a study in San Francisco
determined that 41% of the 324 participants involved were familiar with the
term "subliminal advertising," were of the impression that use of such was
unethical, but 67% of those with awareness stated they would not be deterred
from watching a television program, despite having a belief that such messages were included in the commercials.126 A later study conducted showed
an increasing public awareness of the term "subliminal advertising" and that
the method of advertising was successful in product sales.2 7
In response to the public's concerns about the use of subliminal messaging and advertising, the FCC provided that the Communications Act was
generally applicable to use of these messages.12 8 Under Section 303 of the
Act, the FCC explained that all communications were controlled and regulated by the Commission, which was "guided by public interest, convenience, or necessity."' 29 "Section 326 [of the Act] prohibits the FCC from censoring broadcast material, including advertising." 30 However, the government has stated that those on the receiving end of messages are entitled to the
knowledge of who is attempting to persuade them.' 3 ' The requirement that
all broadcast material "is to be announced as paid for or furnished, and by
whom" is a longstanding requirement, dating back to the Radio Act of
1927.132
In response to the public's concern of unbridled access to its subconscious, the FCC contended that Section 317's applicability would extend to
the prohibition of "subjecting audiences to messages received from undis-
closed sources."l 3 3
Application of Section 317 to sponsored subliminal program
material presented, for example, at five-second intervals, would, in
practical effect, ban unrestricted use of the technique. In addition,
Sections 73.1212 and 76.221 (applicable to broadcasting and cable
television, respectively) of the Commission's Rules require that
sponsored program matter be announced as such. Therefore, it ap126. Rogers & Smith, supra note 123, at 11.
127. Id. This later study, and a study which followed, also revealed that those who were
familiar with subliminal messaging were more educated than those who were not. Id. The
researchers recognized a correlation between education and awareness-as the educational
level of the participants rose, awareness did as well. Id.
128. FCC Information Bulletin on Subliminals, supra note 124.
129. Id.
130. Id.
131. Id.
132. Id.
133. FCC Infornation Bulletin on Subliminals, supra note 124.
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pears that sponsored telecast or cable-originated material that is
subliminally projected falls within these rules.134
Despite the rules that existed, broadcast companies continued to air subliminal messages and claimed they never received information from the FCC
regarding the ban of such advertisements.135 As such, the FCC issued a Public Notice explaining that "[w]e believe that use of subliminal perception is
inconsistent with the obligations of a licensee, and therefore we take this
occasion to make clear that broadcasts employing such techniques are contrary to the public interest. Whether effective or not, such broadcasts clearly
are intended to be deceptive."l 36
VIII.
LEARNING TO SEE THE INVISIBLE
Subliminal messages are all around, though most are covert.'37 However, one can train his or her self to recognize these messages and decipher the
intent of the message, so long as certain steps are followed.13 1
First and foremost, it is imperative that the recipient of the message is
able to identify what the nature of the message is, for example, what particular item a subliminal advertisement is enticing one to purchase.139 Next, the
audience member should read, view, or listen to the message carefully, starting at the top or beginning of the message and paying close attention to it all
the way through the bottom or the end.'" This will allow the audience member to determine whether "the message [is] suggestive, embedded, or
overt."'41 Messages that are embedded in images are typically more difficult
to decipher, while the rare, overt messages are more visible.142
Important while examining a message for subliminals, is the ability to
recognize if anything seems unusual or misplaced.1 4 3 In order to best utilize
one's ability to recognize these items, it is critical to be relaxed; otherwise, a
subliminal message is easy to overlook.'" This is because subliminal mes134. Id.
135. Id.
136. Id.
137. How to Spot SubliminalAds: Steps on How to Spot Subliminal Ads, STARTUPBIZHUB,
http://www.startupbizhub.com/how-to-spot-subliminal-ads.htm (last visited Apr. 15, 2012).
138. Id.
139. Id.
140. Id.
141. Id.
142. How to Spot SubliminalAds: Steps on How to Spot Subliminal Ads, supra note 137.
143. Id.
144. Id.
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sages are meant to trigger the subconscious of those who are simply glancing
at or thoughtlessly listening to a form of media.145 Specifically, when looking at advertisements, reading the advertisement in reverse may reveal a
message that was undetectable in the original reading. 14 6 Failure to pay careful attention to the details of the message may result in behaviors in which a
person would not have normally engaged. 4 71In other words, the messages
may remove from a person his or her ability to make a decision about a particular product or may result in atypical behavior due to his or her failure to
decipher a message. 148
Accordingly, the question becomes: Is it constitutional, or even ethical,
for companies and organizations to include these messages into their media
in order to influence people's performances?
IX. THE FIRST AMENDMENT
In 1791, freedom of speech was guaranteed by the First Amendment
with the adoption of the Bill of Rights. 149 The First Amendment of the United States Constitution provides that "Congress shall make no law .. . abridging the freedom of speech;" however, this right is not absolute.o50 Speech
may be regulated because of certain ideas it conveys or by limiting certain
types of activities."' It has been argued that subliminal messages are not
speech because they "are not consciously perceived and are not meant to be
heard and discussed, [and] they do not advance the ideals of the Free Speech
Clause."l 5 2 In contrast, subliminal messages, like speech, are intended to
convey a message and have been proven to be effective in such conveyance.153 "[T]he central concern of the First Amendment ... is that there
be a free flow from creator to audience . . . ."154 "Freedom of speech is not
55
limited to political expression or comment on public affairs."
145. Id.
146. Id.
147. See How to Spot Subliminal Ads: Steps on How to Spot Subliminal Ads, supra note
137.
148. See id.
149. U.S. CONsT. amend. I; Scot Silverglate, Comment, Subliminal Perception and the
FirstAmendment: Yelling Fire in a Crowded Mind?, 44 U. MIAmi L. REv. 1243, 1256 (1990).
150. U.S. CoNsT. amend. I; Silverglate, supra note 149, at 1246.
151. Silverglate, supra note 149, at 1260.
152. Capps, supra note 9, at 32.
153. Id. at 33.
154. Young v. Am. Mini Theatres, Inc., 427 U.S. 50,77 (1976).
155. Olivia N. v. Nat'l Broad. Co., 126 Cal. App. 3d 488, 493 (Ct. App. 1981) (citing
Time, Inc. v. Hill, 385 U.S. 374, 388 (1967)).
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Commercial Speech
Although commercial speech is protected by the First Amendment, it
has a somewhat lesser protection for which there are numerous rules and
regulations with which advertisers must comply in order to be afforded the
protection.'5 6 The Supreme Court has defined purely commercial speech as
speech that "does 'no more than propose a commercial transaction"" [and]
is so removed from any 'exposition of ideas."" 58 If commercial speech "is
neither misleading nor related to unlawful activity," then it is protected.15 9
Does the very nature of the word subliminals place them into the category of
"misleading?" The incorporation of subliminals in advertising and still affording them First Amendment protection under commercial speech has long
been a controversial issue.
Advertisements, as early as the seventeenth century, have used people's
emotions and nonverbal conditioning techniques in order to sell their products. 6 Intelligent advertisers appeal to a customer's "emotional or psychological needs" and portray a product that effectively conditions a consumer
to believe that this product will fulfill his or her needs.' 6 ' So, how is basic
advertising different from advertising with subliminals? Both intend to condition a positive response to a product in order to more effectively sell the
product, and both change the way people think to motivate sales or ratings.
One argument is that where basic advertisements are just intended to trigger
feelings and emotions and portray an artistic expression, subliminals in advertisements are only intended to trigger a response in favor of such advertisements.162 However, supporters of this view also state, "[a] primary purpose of music is to trigger emotion. Listeners often 'consume' musical emotion purely for private enjoyment, but music can be used manipulatively as
well to enhance work production or to catalyze in store shopping behavior." 63
156. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748,
770-73 (1976); Olivia N., 126 Cal. App. 3d at 493.
157. Va. State Bd. of Pharmacy, 425 U.S. at 762 (citations omitted) (quoting Pittsburgh
Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 385 (1973)).
158. Id. (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).
159. Cent. Hudson Gas & Electric Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557,
564 (1980).
160. Silverglate, supra note 149, at 1261.
161. Id. at 1262.
162. See 0. Lee Reed & Douglas Whitman, A Constitutionaland Policy-Related Evaluation of Prohibitingthe Use of Certain Nonverbal Techniques in Legal Advertising, 1988 BYU
L. REv. 265, 274-75, 285.
163. Id. at 276 (footnotes omitted).
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Although our verbal communications are an important factor in human
information, they are not the only form through which we receive information.' 6" Nonverbal communication, regardless of its categorization as subliminal or not subliminal, plays an important role as well.165 For instance,
when you have a conversation with someone, you perceive him or her not
only by what is being said with words, but also by his or her body gesture,
posture, tone of voice, eye contact, and tonal inflections. 166 Advertisements
use this same technique. 67 One study on television advertisements indicated
that:
[F]ewer than half of the commercials examined contained even
one of some thirteen possible categories of product-intrinsic information.
. .
. [However], [i]nformation theory holds that "infor-
mation is a name for the content of what is exchanged with the
outer world as we adjust to it, and make our adjustments felt upon
i c,168
it."
The question remains unanswered: Are subliminal messages a part of
commercial speech? Advertisers, whether subliminals are used or not, must
still comply with the restrictions and regulations that our government has in
place. Psychological methods of persuasion are used in our everyday life;
the very purpose of an advertisement is to promote sales by altering your
view of a product. Does adding a subliminal message to an advertisement
change this purpose? Does adding an extra invisible influence, among the
many that naturally occur, violate our right to privacy?
B.
Right to Be Freefrom Unwanted Speech
A chain of Supreme Court of the United States cases beginning in the
1940s balanced the right of an individual's privacy with another individual's
right to free speech.'6 9 These cases held that people should be free from unwanted speech, thereby restricting the First Amendment freedom of speech
164. Id. at 268.
165. See id.
166. Id. at 268-69.
167. Reed & Whitman, supra note 162, at 274.
168. Id. at 273-74.
169. See Frisby v. Schultz, 487 U.S. 474, 488 (1988); FCC v. Pacifica Found., 438 U.S.
726, 748 (1978) (citing Rowan v. U.S. Post Office Dep't, 397 U.S. 728, 738 (1970)); Lehman
v. City of Shaker Heights, 418 U.S. 298, 302-04 (1974) (citations omitted); Rowan, 397 U.S.
at 738; Kovacs v. Cooper, 336 U.S. 77, 88-89 (1949).
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so as to only reach a captive audience.o70 However, the Supreme Court has
also held that if the unwanted audience is able to avoid the speech after hearing it, the individual's freedom of speech will prevail. 7 1 Moreover, unless
one can illustrate that "the speech is offensive or objectionable, and the unwilling listener or viewer is unable to avoid continued exposure to the message or is captive in his or her home," then the individual's freedom of
speech will triumph. 2
Are all subliminals offensive? Is unaware speech the same thing as unwilling speech? After reviewing the history of attempts at subliminal speech,
one can answer both of these questions in the negative.173 Furthermore, the
court has held in many instances that it is "better to err on the side of free
speech" in competing interests.174 For instance, the Supreme Court stated in
Martin v. City of Struthers"' that "[flreedom to distribute information to
every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health
regulations of time and manner of distribution, it must be fully preserved." 7 6
On the other hand, one of the main purposes of free speech is personal
autonomy. 7 Personal autonomy "is the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery of human life."
By allowing the use of subliminals in an attempt to honor the right of free
speech, are we ultimately defeating one of its main purposes? Although the
speaker is entitled in a subliminal message to communicate his or her free
expression, the listener is denied his or her personal autonomy by not being
able to make his or her own decisions.
To label subliminal messages, as a whole, protected or unprotected
speech would be improper.'79 The more competent approach is to evaluate
each subliminal on a case-by-case basis and discuss each element necessary
170. See Frisby,487 U.S. at 488; PacificaFound., 438 U.S. at 748-49; Lehman, 418 U.S.
at 303-04; Rowan, 397 U.S. at 738; Kovacs, 336 U.S. at 88-89.
171. E.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 210-12, 217-18 (1975) (citations omitted); Cohen v. California, 403 U.S. 15, 21-22, 26 (1971).
172. Capps, supra note 9, at 37.
173. See discussion supra Part 1l.
174. E.g., Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir. 1977).
175. 319 U.S. 141 (1943).
176. Id. at 146-47. Further, "[fireedom of speech presupposes a willing speaker. But
where a speaker exists ... the protection afforded is to the communication, to its source and to
its recipients both." Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425
U.S. 748, 756 (1976).
177. Pearson, supra note 12, at 794.
178. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).
179. See Silverglate, supra note 149, at 1264-65.
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to determine whether the speech is protected or unprotected, using a reasonable person standard.
X.
RECOMMENDATIONS
Although the concern over subliminals came to the forefront in the mid1950s,so the issues surrounding the proper way to regulate them still have a
long way to go. Both federal and state legislation continue in the attempt to
protect the balancing interests of freedom of speech and freedom of privacy,
however, they have yet to settle this war.' 8 ' Subliminals have become a
global issue, encompassing the media, the news, our entertainment, and influencing our everyday decisions and actions.
One of the easiest and probably most effective ways to resolve the issues subliminal messaging may cause is to place warning labels on those
messages that contain them. This would allow an individual the ability to
refrain from hearing the subliminals if they do not wish to, and still allow an
individual to maintain his or her freedom of speech. For example, a simple
statement at the beginning of a CD stating, "this CD contains subliminal
messages," or a brief statement at the start of a television or media broadcast
to the same extent, could be the beginning of the end of this ongoing battle.
Although seemingly one of the simplest solutions, it still poses some problems. Is there really a way to know if a person fully consents to a message
when they do not know what it involves? Further, although an individual
may consent to hearing the message, he or she has not consented to the effect
the subliminal will have on his or her behavior in the future, or throughout
his or her entire life. Moreover, what if a person begins watching or listening to a show or the radio in the middle of the program? The warning stating
that this message contains subliminals would be missed and, therefore, the
individual would never consent.
Another simple, yet problematic, approach is to partially regulate subliminals. A committee could be set up to regulate which subliminals are
allowed to be used and which are not. However, how will the government
decide who that committee consists of or which subliminals the committee
should prohibit? Our society can hardly come up with an exact definition of
what a subliminal is, so is there any way to partially regulate something we
cannot yet define?
The government could also try to ban subliminals altogether. However,
this is an unlikely solution as subliminals currently are afforded First
180.
181.
See id. at 1266-69.
See id. at 1266-67; see also Pearson,supra note 12, at 781-82.
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Amendment protection and a blanket ban would chill the speech of those
attempting to deliver the subliminal message. 18 2 Additionally, there are various naturally occurring subliminal messages that happen daily and it would
be impossible to prosecute and deter the use of such subliminals. Moreover,
this would lead to a flooding of our courts if we allowed every painter, musician, broadcaster, or company to be sued for the invasion of privacy of an
individual whose behavior was affected in some way by a subliminal.
XI. CONCLUSION...
Subliminal message use, research, and regulation have come a long way
since the 1950s. With the greater use of technology and the means to produce subliminal messages, the use of them is only going to grow with time.
How this invisible influence has shaped the images, messages, thoughts, and
values of our society is a topic at the forefront of our concerns about subliminals. Are we incapable and defenseless against these messages absorbing
into our minds because of the lack of awareness that we are even receiving
information? This disputed question lies beyond the concept of communication and goes into the psychological theories of speech. Our experiences
throughout life shape our existence-should other people be allowed to
shape our experiences through subliminals? This is a question that can only
be answered with time.
Until that time comes, we, as viewing audiences, remain at the disposal
of filmmakers, musicians, advertisers, and other individuals involved in the
creation of media to receive their messages, whether voluntarily or not.
While we choose which movies we sit down to watch, which songs we listen
to, and which channels we change while watching television, the visual and
audio bits that lie beneath the surface of the messages are unavoidable. Until
this dispute is laid to rest, children today remain susceptible to hearing their
favorite cartoon characters urge them to undress in a public theater or seeing
182. See Silverglate, supra note 149, at 1264-65.
183. If you flipped directly from Section 11of this article to the Conclusion, it is because
you likely recognized the subliminal messages the authors embedded throughout the section
entitled "The History of Attempts at Unconscious Persuasion." Though not a controversial
attempt, inclusion of this message is to show that these messages carry a certain level of influence over recipients of subliminals. While your freedom of speech was not affected, your
concentration on this article in sequential order was impeded due to the type of mind manipulation this article analyzes. The content of the message embedded in this article is not intended to affect the reader's mood, it is meant to minimally influence the conscious mind-or
subconscious mind, depending on how closely you, as the reader, are paying attention to what
you are reading-to prove the power of a subliminal message, whether visual or audible.
Published by NSUWorks, 2012
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[Vol. 36
the word "SEX" flash across the screen as they watch a classic animated
film. But those signals could not possibly be intentional-or could they be?
As long as those in the legal field are unable to answer this question,
movies, television shows, music, and commercials will continue to be produced, and those responsible for their creation cannot be asked to halt production due to a mere possibility that our lives are being affected by some
undetectable and uninvited influence. So, in the meantime, it is lights, camera, action, because as they say, the show must go on!
http://nsuworks.nova.edu/nlr/vol36/iss3/4
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